All change, please: Government announces widespread changes to Use Classes Order creating greater flexibility for commercial occupiers

On 1 September 2020 sweeping changes to the Town and Country Planning (Use Classes) Order 1987 are expected to come into effect in England.

This change is intended to provide occupiers with greater flexibility in the use of commercial premises, particularly the traditional high street which has struggled to keep up with out of town retail and online shopping in recent years. COVID-19 has only worsened this position.

With effect from 1 September 2020 Use Classes B1, A1-A5, D1 and D2 will cease to be used and will be replaced, predominately, with new:

• Use Class E – Commercial business and service
• Use Class F1 – Learning and non-residential
• Use Class F2 – Local community

Occupiers do not usually need to apply for planning permission to change to other uses within the same use class. The intention behind the new use classes is to allow businesses flexibility to adapt to change and, perhaps, offer mixed uses without the need for planning permission for a change of use.

The main change is the creation of the new and wide Use Class E "Commercial, business and service".

Use Class E

The new Use Class E will cover a range of uses previously spread across multiple use classes. These are set out below, along with the uses’ original classes:

• Retail shops (prev. A1) (but not small local shops – see Use Class F2 below)
• Cafés and restaurants (prev. A3)
• Financial services (prev. A2)
• Professional services (prev. A2)
• Indoor sport and recreation (prev. D2)
• Medical or health services (prev. D1)
• Crèches, day nurseries or day centres (prev. D1)
• Offices (prev. B1a)
• Research and development (prev. B1b)
• Industrial processes (which can be carried out in a residential area) (prev. B1c)
• Any other services that are appropriate to provide in a commercial business or service locality (A2)

The uses within the new Use Class E can generally be characterised as uses appropriate to a town centre.

Use Class E also adds a new concept of “part use”, allowing an occupier to change use of part of a property to another use within Class E use, such as a shop with an integrated café, without planning permission.

Use Class F

The new Use Class F1 ("learning and non-residential institutions") amalgamates the majority of current Use Class D1 uses that have not been carried over into the new Use Class E:

• Education
• Displays of art
• Museums
• Libraries
• Public halls
• Places of worship
• Law courts

The new Use Class F2 ("Local community class") combines the following uses:

• Local shops that are no larger than 280 square metres and in locations where there is no commercial class retail unit within one kilometre (prev. A1)
• Community halls (prev. D1)
• Outdoor leisure or sport venues (prev. D2)
• Indoor or outdoor swimming or skating rinks and swimming pools (prev. D2)

And the rest?

Several uses that previously fell within the old Use Classes A4, A5 and D2 have not been incorporated into the new use classes. These are termed “sui generis” and examples include theatres, casinos and scrapyards. Sui generis uses cannot be changed to another use, including from one sui generis use to another, without planning permission.

The uses that have become sui generis are:

• Pubs, wine bars and other drinking establishments (prev. A4)
• Drinking establishment with expanded food provision (prev. A4)
• Hot food takeaways (prev. A5)
• Live music venues (prev. D2)
• Cinemas (prev. D2)
• Concert, bingo and dance halls (prev. D2)

These new sui generis uses are perhaps viewed as having more of an effect on a local community, either by their introduction or removal and so the Government’s intention appears to be to give a local authority greater control over changes to or from these uses.

There are no changes to the existing use classes for residential (Use Class C), general industrial (Use Class B2), or storage and distribution (Use Class B8) use.

Points to consider

While the new use classes will no doubt be welcome news to many, there are other factors that will need to be considered by occupiers seeking to take advantage of this greater flexibility:

• Any restrictions on use imposed by existing planning permission will remain. If the current planning permission for the use of a property specifies the particular use permitted, the occupier will not be able to change that use without planning permission.
• Similarly, any use restrictions in an occupier’s lease will continue to apply. Although planning permission may not be required for a change of use, a landlord’s consent might be.
• The use classes amendments do not extend to deemed permission for any works required to change use (such as shopfronts or layouts). Permission for these will still be required in the usual way.

Although the new use classes will come into effect on 1 September 2020, from 1 September 2020 to 31 July 2021 any specific references to uses and use classes in the General Permitted Development Order (or “GPDO”, which grants automatic planning permission for changes between certain use classes) will remain as references to the current use classes. By way of example, the GDPO permits the change of use without planning permission from the current Use Class A5 (hot food takeaways) to Use Class A1 (shops). These GDPO rights will not be widened by shops now falling within the new Use Class E.

As to pending applications, any applications for planning permission submitted before 1 September 2020 which refer to current use classes will be determined by reference to those old use classes.

Government guidance is expected to be issued shortly.